“Dick and Jane” Mediation by Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we have moved through a temporary hearing, looked at their discovery issues and we are now headed for a showdown. Prior to a final trial in the case, the parties will be required to attend mediation in an effort to resolve the case.
Mediation is not the same as arbitration, though the two are frequently confused. Arbitration is where the parties agree to submit the case (or parts of the case) to a binding decision by a third party that they have chosen or whom has been appointed. Arbitration is an option for resolving a divorce, particularly in instances where the parties wish to maintain privacy and/or would like someone with unique experience or expertise to consider all or part of the case. Mediation, on the other hand, is a settlement conference that may or may not result in an agreement. Either party is free to terminate mediation at any time and for any reason. Neither party can be compelled or forced to agree to anything at mediation.

Despite being non-binding, mediation is overwhelmingly successful at getting cases resolved. Cobb County’s Office of Dispute Resolution generally reports an annual settlement rate of 60 – 75% in domestic relations cases. The actual settlement rate attributable to mediation is likely higher as a number of cases settle in the days leading up to mediation or settle after mediation due to the progress made in that setting.
Mediation begins with the selection or appointment of a “neutral” or mediator who will facilitate the process. Mediators in domestic cases are usually, but are not required to be, lawyers. Many mediators are retired Judges from the Superior Court who bring with them years of experience in trying and deciding domestic cases. Mediators receive initial training through the Georgia Office of Dispute Resolution and also have to maintain annual continuing education requirements.
The selection of a mediator is essential to the mediation process. Dick and Jane won’t likely know anything about the mediator and his/her mediation style. The lawyers for each will have a memory bank upon which to draw and will likely have conversations about possible mediators. Some mediators have a laid back, facilitative style whereby they are able to pass settlement offers between parties and massage each party toward the other party’s viewpoint. Other mediators respond well to emotional outbursts and have a “counselor” type approach and are able to listen and provide sympathetic ear toward the hurt, anger or frustration being displayed, while also encouraging the party to let that emotion drop and keep the process moving. Lastly, some mediators are the more forceful “suck it up and get over yourself” type, who can provide each party with an effective dose of what the unsympathetic reaction of a Judge is likely to be.

Mediation will generally start in a group session. The mediator will review the mediation process, the rules and the role of the mediator. The parties and lawyers are all asked to sign an agreement indicating that they have read and understand the rules of mediation. Most important among the mediation rules is confidentiality. In order for settlement conferences to be productive, both sides must be comfortable making compromises. If a party felt that a compromise could be admitted in Court, the process would break down quickly. For that reason, any admission or compromise or settlement proposal made in mediation is confidential and not available for use in Court.

Some mediators allow for each side to make a general statement in the group session of the issues to be resolved. However, this process can be detrimental to the mediation atmosphere. Often times, the lawyer or the party will become accusatory and argumentative regarding their position on the issue. For this reason, many mediators and lawyers prefer to skip the overview portion of the joint session and move immediately to the caucus portion.

During caucus, the mediator meets with each party and his/her lawyer privately. In that meeting, the mediator wants to know three pieces of critical information:
1) What are the issues to be decided? (i.e. alimony, custody, child support, specific property division)
2) What is that party’s position on each of the foregoing?
3) What are going to be the stickiest issues or possible barriers to getting a deal done today?

Of the foregoing, the third item is critical to success. There are some barriers and issues which will torpedo a mediation faster than others. Some issues cannot, by their nature, be compromised. For example, if the issue being determined is related to custody and the Mother truly believes that the Father is abusing the child and wants no visitation or strictly supervised visitation, but the Father adamantly denies the abuse and wishes to have extended visitation, it will be difficult to compromise the relative positions. Alternatively, the parties may not have values on property or business interests completed. The parties may be unwilling or unable to approximate values and cannot productively mediate the case.
It is essential that each party arrive to mediation prepared to settle, but also prepared in general. Mediation, even if unsuccessful, can be treated as a dry run for trial and used to gain insight into the positions of the other party and to glean a reaction from a neutral third party.

Next month, we will move Dick and Jane on to a final trial? The question to consider will be – judge or jury?